Filed 12/17/19 P. v. Statiras CA4/1

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION ON TRANSFER FROM CALIFORNIA SUPREME COURT

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

PERICLES TERRANCE STATIRAS,

Defendant and Appellant.

D073891

(Super. Ct. No. SCD275960)

APPEAL from a judgment of the Superior Court of San Diego County, Polly H. Shamoon, Judge. Affirmed as modified and remanded with directions.

Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Robin Urbanski and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.

 

Defendant Pericles Terrance Statiras pleaded guilty to one count of burglary (Pen. Code, § 459). The court placed him on five years formal probation with the condition that he serve 365 days in custody with treatment in a residential treatment facility after serving 160 actual days. It imposed as conditions of probation (1) an electronics search requirement that Statiras “[s]ubmit [his] person, vehicle, residence, property, personal effects, computers, and recordable media including electronic devices to search at any time with or without a warrant, and with or without reasonable cause, when required by [a probation officer] or law enforcement officer” and (2) a requirement that Statiras obtain his probation officer’s approval as to his residence and employment. On appeal, Statiras contended the electronics search condition was unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) and unconstitutionally overbroad. He further contended the residence and employment approval condition was likewise unconstitutionally overbroad.

We originally rejected Statiras’s contentions, concluding the electronics search condition was reasonable under Lent, supra, 15 Cal.3d 481 and holding the residence and employment approval condition was not overbroad. Thus, we affirmed the judgment.

The California Supreme Court granted review (S256168). After it decided In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.), it directed us to vacate our opinion and reconsider the cause in light of that case. In supplemental letter briefing, Statiras argues there is no evidence in the record that he used any electronic devices for any reason and thus the condition must be stricken under Ricardo P. as unreasonable. The People concede on the present record there is an insufficient basis for finding that the electronics search condition is reasonably related to future criminality. Rather than strike the condition, they ask us to remand the matter to the trial court to afford it an opportunity to supplement the record in light of Ricardo P. or alternatively to further tailor the condition or impose some other condition. On reconsideration, we accept the Attorney General’s concession; however, we strike the electronics search condition. We direct the trial court on remand to consider whether to impose a narrower electronics search condition that comports with Ricardo P.

FACTUAL AND PROCEDURAL BACKGROUND

Some of the background facts are taken from Statiras’s probation report. In March 2018, Statiras pleaded guilty to burglary, admitting as the factual basis for the plea that he “entered a non-commercial building with the intent to commit a theft—(a law office not during business hours.)” He poured liquid on an alarm keypad; ransacked offices, the kitchen and bathrooms; and pried open an alarm box and tried to disable it by tearing out wires and components. He then locked himself in a rear office and either fell asleep or passed out from using narcotics. After his arrest, Statiras began screaming at the officers, complaining it was too hot in the police vehicle and removing his clothing. When officers told him to calm down because it was 63 degrees and the windows of the car were down as much as possible, Statiras replied, “You do two bindles of meth and then get grabbed by the cops and try to be calm!”

Statiras was 46 years old and a transient at the time of the offense. He has a history of committing crimes in Georgia, Montana and Florida beginning in 1990. Specifically, he has on his record two 1990 felony burglary convictions, 1991 misdemeanor driving while intoxicated and felony terrorist threat convictions, a 1992 misdemeanor theft conviction, a 1992 plea of nolo contendere to misdemeanor contempt, a 1994 plea of nolo contendere for misdemeanor possession of a barbiturate, 2001 misdemeanor convictions for possession of drugs and drug paraphernalia and obstructing a peace officer, 2012 convictions for felony willful obstruction of a law enforcement officer and possession/use of a drug-related object, a 2013 plea of nolo contendere for fleeing officers, and a 2014 conviction for felony possession of a schedule 1 controlled substance. In 2013 and 2015 he violated his probation, and a warrant was issued for his arrest. In San Diego, Statiras pleaded guilty in 2018 to two misdemeanor offenses of possessing controlled substances after failing to appear in December 2017, but warrants were later issued for his arrest. In January 2018 he was convicted of misdemeanor vandalism in Los Angeles. He was active on probation in two Georgia cases at the time of the current offense, and the probation officer considered his adjustment to probation unsatisfactory.

Statiras also has a history of daily marijuana use since age 16. He smoked cocaine three to four times a week for ten years ending in 1997, used LSD 25 to 50 times since age 16, had been using methamphetamine since November 2017, and used methamphetamine on the day of his arrest.

At Statiras’s sentencing hearing, the court stated it would impose the above-referenced electronics search condition (condition 6n) and a condition requiring Statiras to obtain his probation officer’s approval as to his residence and employment (condition g). It ordered Statiras to, among other things, “obey all laws,” and imposed a condition that Statiras submit his residence, personal effects, and vehicle to search at any time with or without a warrant, and with or without reasonable cause, when required by his probation officer. Statiras’s counsel objected to imposition of condition 6n, stating: “This is a case in which my client while high on drugs entered a building and ransacked it. I don’t even think he had any electronic devices on him. His pockets were filled with things like throat lozenges and hair ties. There is no nexus to the conduct in this case nor anything in his prior history.” The probation officer responded by asserting that Statiras “gathered items to sell” and it was “likely he would have used an electronic device to attempt to do that.” The probation also pointed out Statiras was “in possession of controlled substances and has prior controlled substance offenses . . . . It’s also likely he can try and obtain drugs through electronic devices.”

The court imposed the conditions, stating: “This gentleman has had a drug problem for the last two decades that has apparently spurred other violations in the law. We’re going back to a conviction date of 1989 and included in the several pages of his rap sheet—that included within the probation report—is a history of drug use and abuse, violations of probation for getting more drugs, fleeing and theft as a result of drug issues along with the fact that he continues to show violence when he is under the influence of drugs. Based on all of those, the Court will find probation will be helped with the opportunity and ability to get into electronic devices to see if he is trying to obtain more drugs or using that to sell drugs. Also based on his presentation that he has started using drugs at age 13 and has used a variety of them, it’s unlikely that without further supervision from probation he will stop. Given all those reasons, [probation condition] 6n is being ordered in this case to extend to electronic devices.”

DISCUSSION

I. Legal Principles and Standard of Review

“When an offender chooses probation, thereby avoiding incarceration, state law authorizes the sentencing court to impose conditions on such release that are ‘fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and . . . for the reformation and rehabilitation of the probationer.’ ([Pen. Code,] § 1203.1, subd. (j).) Accordingly, . . . a sentencing court has ‘broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to . . . [Penal Code] section 1203.1.’ [Citation.] But such discretion is not unlimited: ‘[A] condition of probation must serve a purpose specified in the statute,’ and conditions regulating noncriminal conduct must be ‘ “reasonably related to the crime of which the defendant was convicted or to future criminality.” ‘ ” (People v. Moran (2016) 1 Cal.5th 398, 402-403.)

The types of conditions a court may impose on a probationer are not unlimited, but are circumscribed as stated in the seminal case of Lent, supra, 15 Cal.3d 481. (People v. Moran, 1 Cal.5th at p. 405.) Under Lent, which involved an adult probationer as here,

” ‘a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.’ [Citation.] . . . ‘A condition of probation will not be held invalid unless it “(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.” ‘ [Citation.] The Lent test ‘is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.’ ” (Ricardo P. supra, 7 Cal.5th at p. 1118.)

Lent’s third prong, the sole factor at issue here, requires an analysis of the “connections between the burdens imposed by the challenged [probation] condition and a probationer’s criminal conduct or personal history,” as well as the goal of deterring future criminality. (Ricardo P., supra, 7 Cal.5th at p. 1120.) That factor “requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality.” (Id. at p. 1121.) It contemplates a degree of proportionality (id. at p. 1122); a condition will satisfy Lent’s third prong of invalidity if, in light of the facts and circumstances in the case, the burden it imposes on a probationer is “substantially disproportionate to the condition’s goal . . . .” (Id. at p. 1119; see also id. at pp. 1127-1128.) At the same time, conditions ” ‘aimed at rehabilitating the offender need not be so strictly tied to the offender’s precise crime’ [citation] so long as they are ‘reasonably directed at curbing [the defendant’s] future criminality’ [citation]. For example, courts may properly base probation conditions upon information in a probation report that raises concerns about future criminality unrelated to a prior offense.” (Id. at p. 1122, citing People v. Lopez (1998) 66 Cal.App.4th 615, 623-625.)

In Ricardo P., the California Supreme Court found such proportionality lacking where the trial court imposed a “sweeping” electronics search condition on a juvenile probationer where “nothing in the record suggest[ed he] ever used an electronic device or social media in connection with criminal conduct.” (Ricardo P., supra, 7 Cal.5th at p. 1122.) The sole justification for the condition was the trial court’s observation that the minor had previously used marijuana and belief that minors typically “brag[ged]” about drug use on the Internet. (Ibid.) On that record, the California Supreme Court held the condition imposed “a very heavy burden on privacy with a very limited justification,” and the disproportion compelled the court to invalidate it under Lent as “not ‘ “reasonably related to future criminality” ‘ . . . .” (Id. at p. 1124.)

We review Statiras’s probation conditions for abuse of discretion. (Ricardo P., supra, 7 Cal.5th at p. 1118.) Under that standard, we look ” ‘for an indication that the condition is “arbitrary or capricious” or otherwise exceeds the bounds of reason under the circumstances.’ ” (Ibid.) Thus, “a reviewing court will disturb the trial court’s decision to impose a particular condition of probation only if, under all the circumstances, that choice is arbitrary and capricious and is wholly unreasonable.” (People v. Moran, supra, 1 Cal.5th at p. 403.) But constitutional challenges, such as a claim that a condition is overbroad, are reviewed de novo. (People v. Acosta (2018) 20 Cal.App.5th 225, 229; People v. Stapleton (2017) 9 Cal.App.5th 989, 993.)

II. Electronics Search Condition

In view of the foregoing principles set forth in Ricardo P., supra, 7 Cal.5th 1113, we accept the Attorney General’s concession. However, we strike the electronics search condition, and direct the trial court on remand to consider whether a narrower condition will comport with Ricardo P. Given our conclusion, we do not reach whether the electronics search condition is unconstitutionally overbroad.

III. Condition g: Probation Officer Approval of Residence and Employment

Statiras contends the condition that he obtain his probation officer’s approval for his residence and employment is unconstitutionally overbroad. Specifically, he maintains it “infringes on [his] ability to live and work without being reasonably related to the state’s compelling interest in his rehabilitation or public safety” and is “an improper delegation of judicial authority because it confers unfettered power to veto Mr. Statiras’s choice of residence or employment for any reason, or no reason at all.” Statiras asks us to strike the condition as a violation of his Fifth and Fourteenth Amendment rights to association, privacy, and liberty.

A. Forfeiture

Pointing out Statiras did not object to probation condition g below, the People argue the condition is facially valid, and that Statiras forfeited any as-applied challenge. Statiras concedes he did not object to the condition, but he maintains under In re Sheena K. (2007) 40 Cal.4th 875, the constitutional challenge is not forfeited because it presents a pure question of law that may be raised for the first time on appeal.

” ‘As a general rule, failure to challenge a probation condition on constitutional or Lent grounds in the trial court waives the claim on appeal.’ [Citations.] This rule is intended to ‘ “encourage parties to bring errors to the attention of the trial court, so they may be corrected.” ‘ [Citation.] An exception exists, however, where a party raises a facial challenge to a condition of probation as constitutionally vague or overbroad that can be resolved without reference to the sentencing record in a particular case. [Citation.] In reaching this conclusion, our high court emphasized that it ‘d[id] not conclude that “all constitutional defects in conditions of probation may be raised for the first time on appeal, since there may be circumstances that do not present ‘pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court.’ [Citation.] In those circumstances, ‘[t]raditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court.’ ” ‘ ” (In re L.O. (2018) 27 Cal.App.5th 706, 711-712, quoting In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033; People v. Welch (1993) 5 Cal.4th 228, 237; In re Sheena K, supra, 40 Cal.4th at pp. 881, 887, 889; People v. Trujillo (2015) 60 Cal.4th 850, 856.)

Under the foregoing principles, Statiras forfeited his overbreadth challenge to the employment approval condition. Statiras relies on People v. Burden (1988) 205 Cal.App.3d 1277, contending that like the defendant in Burden, his own “employment had no relation to his offense; and going forward, the type of job [he] obtains does not impact the state’s interest in [his] reformation and rehabilitation.” These arguments, however, require a consideration of underlying facts including Statiras’s offense and his employment history. Such an analysis does not present a pure question of law, but instead, requires review of the record. To preserve that sort of argument, Statiras was required to raise his challenge in the lower court so as to allow it to consider the specific argument with reference to Statiras’s personal circumstances, rather than ask this court to address the claim on an undeveloped record. (See Sheena K., supra, 40 Cal.4th at pp. 888-889.)

B. Residence Approval

Relying on People v. Bauer (1989) 211 Cal.App.3d 937 and People v. Soto (2016) 245 Cal.App.4th 1219, Statiras contends the condition requiring he obtain probation officer approval of his residence is overbroad because it “vested full discretion in the probation officer to approve or reject [his] choice of residence” and gives the officer unfettered and unnecessary “broad and sweeping power over [his] choice of residence.”

In People v. Bauer, supra, 211 Cal.App.3d 937, the appellate court rejected a residence approval requirement—designed to prevent the defendant from living with his parents—in part because the defendant’s probation report did not suggest his home life contributed to the crime of which he was convicted or was reasonably related to future criminality. (Id. at p. 944.) The court held the condition therefore violated Lent, supra, 15 Cal.3d 481, and also impinged on the defendant’s constitutional right to travel and freedom of association. (Bauer, at p. 944.) According to the court, it was extremely broad since it gave the probation officer the power to forbid the defendant “from living with or near his parents—that is, the power to banish him.” (Ibid.) In People v. Soto, supra, 245 Cal.App.4th 1219, the Court of Appeal struck a probation condition requiring the defendant to obtain prior approval before changing his place of residence or leaving the state. (Id. at p. 1226.) The basis for the court’s decision was not that the condition was overbroad, but unreasonable under Lent, where the defendant was convicted of driving under the influence of alcohol and with a suspended license, crimes not reasonably related to where he lived or could be influenced by whether he left the state: “[L]ike the Bauer defendant, there is nothing in the record to indicate that defendant’s living situation contributed to his crime or would contribute to his future criminality. The only mention of defendant’s living situation is contained in the probation report, which indicated that defendant had a stable residence and was living with his brother. In sum, there is nothing to suggest that leaving Monterey County or the State of California would have an effect on defendant’s rehabilitation.” (Soto, at p. 1228.) The court held the record did not support a finding that the condition had any relation to the defendant’s future criminality. (Id. at p. 1228.)

Unlike the condition in Bauer, the residence condition imposed here is not designed to prevent Statiras from living where he pleases or “banish” him. (Accord, People v. Arevalo (2018) 19 Cal.App.5th 652, 657.) Moreover, unlike Bauer and Soto, where nothing in the record indicated the defendant’s living situation would contribute to future criminality (People v. Soto, supra, 245 Cal.App.4th at p. 1228; People v. Bauer, supra, 211 Cal.App.3rd at p. 944), Statiras has a lengthy criminal and drug use history, thus, where he lives may directly affect, and is needed to aid in, his rehabilitation. As in Arevalo, the probation officer can limit Statiras’s exposure to sources of temptation for future criminality by, for example, not approving residences in close proximity to drug dealers. (Arevalo, at p. 658.) And likewise, “[l]iving in an area having easy access to drug suppliers could negatively affect [his] rehabilitation.” (Ibid.) Without a limitation placed by the residence condition or without supervision, Statiras could opt to live where drugs are used, sold, or manufactured. A probation officer supervising a person like Statiras must reasonably know where he resides and with whom he is associating in deterring future criminality. We conclude the residence approval condition is constitutionally valid.

C. Request to Modify Probation Condition g

As an alternative to striking probation condition g, Statiras asks that this court remand his case with instructions that the trial court modify the condition to impose “guidelines” for the probation officer to employ in determining whether to approve his choice of residence and employment. The request is premised on his contention that the condition is overbroad; so we decline the request on the grounds stated above.

DISPOSITION

The electronics search condition set forth in probation condition No. 6(n) is stricken and the matter is remanded for the trial court to consider whether to impose a narrower condition that comports with Ricardo P., supra, 7 Cal.5th 1113. (See In re Alonzo M. (2019) 40 Cal.App.5th 156, review filed October 22, 2019 [striking electronics search condition and remanding for trial court to consider whether to adopt a more narrowly tailored condition].) In all other respects, the judgment is affirmed.

O’ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

HALLER, J.